Missouri Supreme Court Dispute Centers On Witness Notes

A lawyer representing a suspect in the disappearance of a 10- year-old boy asked the Missouri Supreme Court on Wednesday to deny a grand jury access to his witness notes.

John Rogers represents Dawan Ferguson, a suspect in the disappearance of his disabled son, Christian Ferguson. The boy was last seen in 2003 in Dawan Ferguson’s vehicle, which he reported stolen.

According to Rogers, St. Louis County Prosecuting Attorney Robert P. McCulloch wants the transcript of Rogers’ interview with Ferguson’s other son, Connor, now 13, to determine whether to indict Ferguson for Christian’s disappearance.

"I understand that the prosecutor wants to have all the information they can get, [but] the only thing I believe they really want is my impression" of the case, Rogers, a partner at Rosenblum, Schwartz, Rogers & Glass in St. Louis, said before the court.

Rogers interviewed Connor last March. A St. Louis County grand jury subpoenaed him in May to get him to turn over the transcript. St. Louis County Circuit Judge Robert S. Cohen upheld the subpoena, saying it was not Rogers’ work product, which is protected by law. Last June, the Missouri Court of Appeals Eastern District affirmed Cohen’s decision.

Rogers noted before the Supreme Court on Wednesday that police interviewed Connor right after Christian disappeared. If prosecutors want to gauge how Connor remembers the events 4 1/2 years later, they can re-interview him, Rogers said.

But even if Connor testified before the grand jury, "we’d still want, and need, to have the other statements in, to compare for inconsistencies," David Truman, an assistant prosecuting attorney in St. Louis County, told the court.

Chief Judge Laura Denvir Stith asked if that would make any defense court transcript discoverable. "Where’s the limit?" she asked. Several other judges seemed to share Stith’s concerns.

But Truman said a trial judge would still be required to review such transcripts in chambers before deciding whether it contained protected work product.

Rogers conceded to the court that the transcript would be discoverable if the subpoena were issued after an indictment.

But the court rule governing disclosure, Rule 25.10, does not kick in until a suspect has been indicted, Judge Richard B. Teitelman said. The question before the court, he said, is whether Cohen had the authority to review the transcript in the first place.

Rogers asked the court to create new law dealing with pre- indictment situations based on its 1995 decision in State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O’Malley. In that case, the court said information about oral interviews was "clearly protected as intangible work product." The O’Malley decision also said questions contained in interrogatories may reveal an attorney’s mental impressions, Rogers said in his brief.

Although O’Malley was a civil case, it’s applicable to the facts in Rogers’ case because the records sought in each are similar, Rogers argued.

But Truman said the court should base its decision on Foote v. Hart, a 1987 decision from the Missouri Court of Appeals Eastern District. The Foote court said work product in criminal cases is defined more narrowly than in civil cases. In criminal cases, it refers to opinions, theories or conclusions of counsel as well as communication between a lawyer and client, Truman argued in his brief.

The transcript sought by the grand jury in Rogers’ case did not contain the defense attorney’s opinions, theories or conclusions about the case, nor did it detail communication between him and his client, Truman argued.

"Given that there’s a difference between the criminal standard and the civil standard, there’s more of a reason to apply the criminal standard pre-indictment," Truman told the court.

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